The Information Technology ACT, 2008
Ministry of Law, Justice and Company Affairs (Legislative Department)
New Delhi, the 9th June 2000/Jyaistha 19, 1922 (Saka)
The following Act of Parliament received the assent of the President on the 9th June 2000 and
is hereby published for general information:As Amended by Information Technology Amendment Bill 2006 passed in Lok Sabha
on Dec 22nd and in Rajya Sabha on Dec 23rd of 2008
An Act to provide legal recognition for the transactions carried our by means of electronic data
interchange and other means of electronic communication, commonly referred to as "Electronic
Commerce", which involve the use of alternatives to paper based methods of communication and
storage of information , to facilitate electronic filings of documents with the Government agencies and
further to amend the Indian Penal Code, Indian Evidence Act, 1872,, The Bankers' Books Evidence
Act, 1891, and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental
thereto.
WHEREAS the General Assembly of the United Nations by resolution A/RES/51/162, dated the
30 th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United
Nations Commission on International Trade Law;
AND WHEREAS the said resolution recommends inter alia that all States give favourable
consideration to the said Model Law when they enact or revise their laws, in view of the need for
uniformity of the law applicable to alternatives to paper-based methods of communication and storage
of information;
AND WHEREAS it is considered necessary to give effect to the said resolution and to promote
efficient delivery of Government services by means of reliable electronic records, BE it enacted by
Parliament in the Fifty-first Year of the Republic of India as follows:I.
1.
PRELIMINARY
Short Title, Extent, Commencement and Application
(1)
This Act may be called the Information Technology Act, 2000. [As Amended by Information
technology (Amendment) Act 2008]
P.S: Information Technology (Amendment) Bill 2006 was amended by Information Technology Act
Amendment Bill 2008 and in the process, the underlying Act was renamed as Information Technology
(Amendment) Act 2008 herein after referred to as ITAA 2008.
(2)
It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also
to any offence or contravention hereunder committed outside India by any person.
(3)
It shall come into force on such date as the Central Government may, by notification, appoint
and different dates may be appointed for different provisions of this Act and any reference in any such
provision to the commencement of this Act shall be construed as a reference to the commencement of
that provision.[Act notified with effect from October 17, 2000. Amendments vide ITAA-2008 notified
with effect from....]
(4)
(Substituted Vide ITAA-2008)
Nothing in this Act shall apply to documents or
transactions specified in the First Schedule by way of addition or deletion of entries thereto.
1
(5)
(Inserted vide ITAA-2008) Every notification issued under sub-section (4) shall be laid
before each House of Parliament
2
Definitions
(1)
In this Act, unless the context otherwise requires,
(a)
"Access" with its grammatical variations and cognate expressions means gaining
entry into, instructing or communicating with the logical, arithmetical, or memory function resources
of a computer, computer system or computer network;
(b)
"Addressee" means a person who is intended by the originator to receive
electronic record but does not include any intermediary;
(c)
section 46;
"Adjudicating Officer" means adjudicating officer appointed under
the
subsection (1) of
(d)
"Affixing Electronic Signature" with its grammatical variations and cognate
expressions means adoption of any methodology or procedure by a person for the purpose of
authenticating an electronic record by means of Electronic Signature;
(e)
"Appropriate Government" means as respects any matter.
(i)
enumerated in List II of the Seventh Schedule to the Constitution;
(ii)
relating to any State law enacted under List III of the Seventh Schedule to the
Constitution, the State Government and in any other case, the Central
Government;
(f)
"Asymmetric Crypto System" means a system of a secure key pair consisting
private key for creating a digital signature and a public key to verify the digital signature;
(g)
"Certifying Authority" means a person who has been granted a license to
Electronic Signature Certificate under section 24;
of a
issue a
(h)
"Certification Practice Statement" means a statement issued by a Certifying Authority
to specify the practices that the Certifying Authority employs in issuing Electronic Signature
Certificates;
(ha)
"Communication Device" means Cell Phones, Personal Digital Assistance (Sic), or
combination of both or any other device used to communicate, send or transmit any text, video,
audio, or image. (Inserted Vide ITAA 2008)
(i)
"Computer" means any electronic, magnetic, optical or other high-speed data
processing device or system which performs logical, arithmetic, and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing,
storage, computer software, or communication facilities which are connected or related to the
computer in a computer system or computer network;
(j)
(Substituted vide ITAA-2008)
"Computer
Network"
means
the
interconnection of one or more Computers or Computer systems or Communication device through(i)
(ii)
the use of satellite, microwave, terrestrial line,wire,wireless or other
communication media; and
terminals or a complex consisting of two or more interconnected computers or
communication device whether or not the interconnection is continuously
maintained;
(k)
"Computer Resource" means computer, communication device, computer system,
computer network, data, computer database or software;
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(l)
"Computer System" means a device or collection of devices, including input and
output support devices and excluding calculators which are not programmable and capable of being
used in conjunction with external files, which contain computer programmes, electronic instructions,
input data, and output data, that performs logic, arithmetic, data storage and retrieval,
communication control and other functions;
(m)
"Controller" means the Controller of Certifying Authorities appointed under sub-section
(7) of section 17;
(n)
"Cyber Appellate Tribunal" means the Cyber Appellate * Tribunal
sub-section (1) of section 48 (* "Regulations" omitted)
established under
(na)
(Inserted vide ITAA-2008) "Cyber cafe" means any facility from where access to
the internet is offered by any person in the ordinary course of business to the members of the public.
(nb)
(Inserted Vide ITAA 2008)
"Cyber Security" means protecting information,
equipment, devices, computer, computer resource, communication device and information stored
therein from unauthorized access, use, disclosure, disruption, modification or destruction.
(o)
"Data" means a representation of information, knowledge, facts, concepts
or
instructions which are being prepared or have been prepared in a formalized manner, and is intended
to be processed, is being processed or has been processed in a computer system or computer
network. ,.and may be in any form (including computer printouts magnetic or optical storage media,
punched cards, punched tapes) or stored internally in the memory of the computer;
(p)
"Digital Signature" means authentication of any electronic record by a subscriber by
means of an electronic method or procedure in accordance with the provisions of section 3;
(q)
"Digital Signature Certificate" means a Digital Signature Certificate issued under subsection (4) of section 35;
(r)
"Electronic Form" with reference to information means any information generated,
sent, received or stored in media, magnetic, optical, computer memory, micro film, computer
generated micro fiche or similar device;
(s)
"Electronic Gazette" means official Gazette published in the electronic form;
(t)
"Electronic Record" means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro fiche;
(ta)
(Inserted vide ITAA-2006) "electronic signature" means authentication of any
electronic record by a subscriber by means of the electronic technique specified in the second schedule
and includes digital signature
(tb)
(Inserted vide ITAA-2006) "Electronic Signature Certificate" means an Electronic
Signature Certificate issued under section 35 and includes Digital Signature Certificate"
(u)
"Function", in relation to a computer, includes logic, control, arithmetical process,
deletion, storage and retrieval and communication or telecommunication from or within a computer;
(ua)
"Indian Computer Emergency Response Team" means an agency established under
sub-section (1) of section 70 B
(v)
"Information" includes data, message, text, images, sound, voice, codes, computer
programmes, software and databases or micro film or computer generated micro fiche; (Amended
vide ITAA-2008)
(w)
(Substituted vide ITAA-2008)
"Intermediary" with respect to any particular
electronic records, means any person who on behalf of another person receives, stores or transmits
that record or provides any service with respect to that record and includes telecom service providers,
network service providers, internet service providers, web hosting service providers, search engines,
online payment sites, online-auction sites, online market places and cyber cafes.
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(x)
"Key Pair", in an asymmetric crypto system, means a private key and its
mathematically related public key, which are so related that the public key can verify a digital
signature created by the private key;
(y)
"Law" includes any Act of Parliament or of a State Legislature, Ordinances
promulgated by the President or a Governor, as the case may be. Regulations made by the President
under article 240, Bills enacted as President's Act under sub-clause (a) of clause (1) of article 357 of
the Constitution and includes rules, regulations, bye-laws and orders issued or made there under
(z)
"License" means a license granted to a Certifying Authority under section
24;
(za)
"Originator" means a person who sends, generates, stores or transmits any
electronic message or causes any electronic message to be sent, generated, stored or transmitted to
any other person but does not include an intermediary;
(zb)
"Prescribed" means prescribed by rules made under this Act;
(zc)
"Private Key" means the key of a key pair used to create a digital signature;
(zd)
"Public Key" means the key of a key pair used to verify a digital signature and listed
in the Digital Signature Certificate;
(ze)
"Secure System" means computer hardware, software, and procedure that -:
(a)
(b)
(c)
(d)
are reasonably secure from unauthorized access and misuse;
provide a reasonable level of reliability and correct operation;
are reasonably suited to performing the intended functions; and
adhere to generally accepted security procedures;
(zf)
"Security Procedure" means the security procedure prescribed under section 16 by
the Central Government;
(zg)
"Subscriber" means a person in whose name the Electronic Signature Certificate is
(zh)
grammatical
"Verify" in relation to a digital signature, electronic record or public key, with its
variations
and
cognate
expressions
means
to
determine
whether
issued;
(a)
the initial electronic record was affixed with the digital signature
of private key corresponding to the public key of the subscriber;
by the use
(b)
the initial electronic record is retained intact or has been altered since such
electronic record was so affixed with the digital signature.
(2)
Any reference in this Act to any enactment or any provision thereof shall, in relation to an area
in which such enactment or such provision is not in force, be construed as a reference to the
corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
II. DIGITAL SIGNATURE AND ELECTRONIC SIGNATURE (amended vide ITAA 2008)
3.
Authentication of Electronic Records
(1)
Subject to the provisions of this section any subscriber may authenticate an electronic record
by affixing his Digital Signature
(2)
The authentication of the electronic record shall be effected by the use of asymmetric crypto
system and hash function which envelop and transform the initial electronic record into another
electronic record.
Explanation -
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For the purposes of this sub-section, "Hash function" means an algorithm mapping or
translation of one sequence of bits into another, generally smaller, set known as "Hash Result" such
that an electronic record yields the same hash result every time the algorithm is executed with the
same electronic record as its input making it computationally infeasible
(a)
to derive or reconstruct the original electronic record from the hash result produced
by the algorithm;
(b)
that two electronic records can produce the same hash result using the algorithm.
(3)
Any person by the use of a public key of the subscriber can verify the electronic record.
(4)
The private key and the public key are unique to the subscriber and constitute a functioning
key pair.
3A
Electronic Signature (Inserted vide ITAA 2006)
(1)
Notwithstanding anything contained in section 3, but subject to the provisions of sub-section
(2), a subscriber nay authenticate any electronic record by such electronic signature or electronic
authentication technique which(a)
is considered reliable ; and
(b)
may be specified in the Second Schedule
(2)
For the purposes of this section any electronic signature or electronic authentication technique
shall be considered reliable if(a)
the signature creation data or the authentication data are, within the context in which
they are used, linked to the signatory or , as the case may be, the authenticator and of no other
person;
(b)
the signature creation data or the authentication data were, at the time of signing,
under the control of the signatory or, as the case may be,the authenticator and of no other person;
(c)
detectable
any alteration to the electronic signature made after affixing such signature is
(d)
any alteration to the information made after its authentication by electronic signature
is detectable; and
(e)
it fulfills such other conditions which may be prescribed.
(3)
The Central Government may prescribe the procedure for the purpose of ascertaining whether
electronic signature is that of the person by whom it is purported to have been affixed or
authenticated
(4)
The Central Government may, by notification in the Official Gazette, add to or omit any
electronic signature or electronic authentication technique and the procedure for affixing such
signature from the second schedule;
Provided that no electronic signature or authentication technique shall be specified in the
Second Schedule unless such signature or technique is reliable
(5)
Every notification issued under sub-section (4) shall be laid before each House of Parliament
III.
4
ELECTRONIC GOVERNANCE
Legal Recognition of Electronic Records
Where any law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law, such requirement
shall be deemed to have been satisfied if such information or matter is
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(a)
(b)
5
rendered or made available in an electronic form; and
accessible so as to be usable for a subsequent reference
Legal recognition of Electronic Signature
Where any law provides that information or any other matter shall be authenticated by affixing
the signature or any document should be signed or bear the signature of any person then,
notwithstanding anything contained in such law, such requirement shall be deemed to have been
satisfied, if such information or matter is authenticated by means of digital signature affixed in such
manner as may be prescribed by the Central Government.
Explanation For the purposes of this section, "Signed", with its grammatical variations and cognate
expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark
on any document and the expression "Signature" shall be construed accordingly.
6
Use of Electronic Records and Electronic Signature in Government and its agencies
(1)
Where any law provides for
(a)
the filing of any form, application or any other document with any office, authority,
body or agency owned or controlled by the appropriate Government in a particular manner;
(b)
the issue or grant of any license, permit, sanction or approval by
called in a particular manner;
whatever name
(c)
the receipt or payment of money in a particular manner, then, notwithstanding
anything contained in any other law for the time being in force, such requirement shall be deemed to
have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by
means of such electronic form as may be prescribed by the appropriate Government.
(2)
The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe (a)
the manner and format in which such electronic records shall be filed,
created or
issued;
(b)
the manner or method of payment of any fee or charges for filing, creation or issue
any electronic record under clause (a).
6A
Delivery of Services by Service Provider (Inserted vide ITAA-2008)
(1)
The appropriate Government may, for the purposes of this Chapter and for efficient delivery of
services to the public through electronic means authorize, by order, any service provider to set up,
maintain and upgrade the computerized facilities and perform such other services as it may specify,
by notification in the Official Gazette.
Explanation: For the purposes of this section, service provider so authorized includes any individual,
private agency, private company, partnership firm, sole proprietor form or any such other body or
agency which has been granted permission by the appropriate Government to offer services through
electronic means in accordance with the policy governing such service sector.
(2)
The appropriate Government may also authorize any service provider authorized under subsection (1) to collect, retain and appropriate service charges, as may be prescribed by the appropriate
Government for the purpose of providing such services, from the person availing such service.
(3)
Subject to the provisions of sub-section (2), the appropriate Government may authorize the
service providers to collect, retain and appropriate service charges under this section notwithstanding
the fact that there is no express provision under the Act, rule, regulation or notification under which
the service is provided to collect, retain and appropriate e-service charges by the service providers.
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(4)
The appropriate Government shall, by notification in the Official Gazette, specify the scale of
service charges which may be charged and collected by the service providers under this section:
Provided that the appropriate Government may specify different scale of service charges for
different types of services.
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Retention of Electronic Records
(1)
Where any law provides that documents, records or information shall be retained for any
specific period, then, that requirement shall be deemed to have been satisfied if such documents,
records or information are retained in the electronic form, (a)
the information contained therein remains accessible so as to be usable
subsequent reference;
for a
(b)
the electronic record is retained in the format in which it was originally generated,
sent or received or in a format which can be demonstrated to represent accurately the
information originally generated, sent or received;
(c)
the details which will facilitate the identification of the origin, destination, date and
time of dispatch or receipt of such electronic record are available in the electronic
record:
Provided that this clause does not apply to any information which is automatically generated
solely for the purpose of enabling an electronic record to be dispatched or received.
(2)
Nothing in this section shall apply to any law that expressly provides for the retention of
documents, records or information in the form of electronic records. Publication of rules. regulation,
etc.. in Electronic Gazette.
7A
Audit of Documents etc in Electronic form
Where in any law for the time being in force, there is a provision for audit of documents,
records or information, that provision shall also be applicable for audit of documents, records or
information processed and maintained in electronic form (ITAA 2008, Standing Committee
Recommendation)
8
Publication of rules, regulation, etc, in Electronic Gazette
Where any law provides that any rule, regulation, order, bye-law, notification or any other
matter shall be published in the Official Gazette, then, such requirement shall be deemed to have
been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in
the Official Gazette or Electronic Gazette:
Provided that where any rule, regulation, order, bye-law, notification or any other matters
published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be
the date of the Gazette which was first published in any form
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Sections 6, 7 and 8 Not to Confer Right to insist document should be accepted in
electronic form
Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any
Ministry or Department of the Central Government or the State Government or any authority or body
established by or under any law or controlled or funded by the Central or State Government should
accept, issue, create, retain and preserve any document in the form of electronic records or effect any
monetary transaction in the electronic form.
10.
Power to Make Rules by Central Government in respect of
(Modified Vide ITAA 2008)
Electronic Signature
The Central Government may, for the purposes of this Act, by rules, prescribe
7
(a)
(b)
(c)
(d)
(e)
10A
the type of Electronic Signature;
the manner and format in which the Electronic Signature shall be affixed;
the manner or procedure which facilitates identification of the person affixing the
Electronic Signature;
control processes and procedures to ensure adequate integrity, security
and
confidentiality of electronic records or payments; and
any other matter which is necessary to give legal effect to Electronic Signature.
Validity of contracts formed through electronic means (Inserted by ITAA 2008)
Where in a contract formation, the communication of proposals, the acceptance of proposals,
the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or
by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the
ground that such electronic form or means was used for that purpose.
IV. ATTRIBUTION, ACKNOWLEDGMENT AND DISPATCH OF ELECTRONIC RECORDS
11
Attribution of Electronic Records
An electronic record shall be attributed to the originator
(a)
(b)
(c)
12
if it was sent by the originator himself;
by a person who had the authority to act on behalf of the originator in respect of that
electronic record; or
by an information system programmed by or on behalf of the originator to operate
automatically.
Acknowledgement of Receipt (Modified by ITAA 2008)
(1)
Where the originator has not agreed with stipulated that the acknowledgment of receipt of
electronic record be given in a particular form or by a particular method, an acknowledgment may be
given
by
(a)
(b)
any communication by the addressee, automated or otherwise; or
any conduct of the addressee, sufficient to indicate to the originator
electronic record has been received.
that the
(2)
Where the originator has stipulated that the electronic record shall be binding only on receipt
of an acknowledgment of such electronic record by him, then unless acknowledgment has been so
received, the electronic record shall be deemed to have been never sent by the originator.
(3)
Where the originator has not stipulated that the electronic record shall be binding only on
receipt of such acknowledgment, and the acknowledgment has not been received by the originator
within the time specified or agreed or, if no time has been specified or agreed to within a reasonable
time, then the originator may give notice to the addressee stating that no acknowledgment has been
received by him and specifying a reasonable time by which the acknowledgment must be received by
him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to
the addressee, treat the electronic record as though it has never been sent.
13
Time and place of despatch and receipt of electronic record
(1)
Save as otherwise agreed to between the originator and the addressee, the dispatch of an
electronic record occurs when it enters a computer resource outside the control of the originator.
(2)
Save as otherwise agreed between the originator and the addressee, the time of receipt of an
electronic record shall be determined as follows, namely –
(a)
if the addressee has designated a computer resource for the purpose of receiving
electronic records
8
(i)
(ii)
(b)
receipt occurs at the time when the electronic record enters the designated
computer resource; or
if the electronic record is sent to a computer resource of the addressee that is
not the designated computer resource, receipt occurs at the time when the
electronic record is retrieved by the addressee;
if the addressee has not designated a computer resource along with specified
timings, if any, receipt occurs when the electronic record enters the computer resource
of the addressee.
(3)
Save as otherwise agreed between the originator and the addressee, an electronic record is
deemed to "be dispatched at the place where the originator has his place of business, and is deemed
to be received at the place where the addressee has his place of business.
(4)
The provisions of sub-section (2) shall apply notwithstanding that the place where the
computer resource is located may be different from the place where the electronic record is deemed to
have been received under sub-section (3).
(5)
For the purposes of this section –
(a)
(b)
(c)
if the originator or the addressee has more than one place of business, the principal
place of business shall be the place of business;
if the originator or the addressee does not have a place of business, his usual place
of residence shall be deemed to be the place of business;
"Usual Place of Residence", in relation to a body corporate, means the place where it
is registered.
V. SECURE ELECTRONIC RECORDS AND SECURE ELECTRONIC SIGNATURES
14
Secure Electronic Record
Where any security procedure has been applied to an electronic record at a specific point of
time, then such record shall be deemed to be a secure electronic record from such point of time to the
time of verification.
15
Secure Electronic Signature (Substituted vide ITAA 2008)
An electronic signature shall be deemed to be a secure electronic signature if(i)
the signature creation data, at the time of affixing signature, was under the exclusive
control of signatory and no other person; and
(ii)
the signature creation data was stored and affixed in such exclusive manner as may
be prescribed
Explanation- In case of digital signature, the "signature creation data" means the private key
of the subscriber
16
Security procedures and Practices (Amended vide ITAA 2008)
The Central Government may for the purposes of sections 14 and 15 prescribe the security
procedures and practices
Provided that in prescribing such security procedures and practices, the Central Government
shall have regard to the commercial circumstances, nature of transactions and such other related
factors as it may consider appropriate.
VI REGULATION OF CERTIFYING AUTHORITIES
17
Appointment of Controller and other officers (Amended Vide ITAA 2008)
9
(1)
The Central Government may, by notification in the Official Gazette, appoint a Controller of
Certifying Authorities for the purposes of this Act and may also by the same or subsequent notification
appoint such number of Deputy Controllers and Assistant Controllers, other officers and employees
(Inserted vide ITAA 2008) as it deems fit.
(2)
The Controller shall discharge his functions under this Act subject to the general control and
directions of the Central Government.
(3)
The Deputy Controllers and Assistant Controllers shall perform the functions assigned to them
by the Controller under the general superintendence and control of the Controller.
(4)
The qualifications, experience and terms and conditions of service of Controller, Deputy
Controllers and Assistant Controllers other officers and employees (Inserted vide ITAA 2008) shall be
such as may be prescribed by the Central Government.
(5)
The Head Office and Branch Office of the Office of the Controller shall be at such places as the
Central Government may specify, and these may be established at such places as the Central
Government may think fit.
(6)
There shall be a seal of the Office of the Controller.
18
The Controller may perform all or any of the following functions, namely
(a)
exercising supervision over the activities of the Certifying Authorities;
(b)
certifying public keys of the Certifying Authorities
(c)
laying down the standards to be maintained by the Certifying Authorities;
(d)
specifying the qualifications and experience which employees of the Certifying Authorities
should possess;
(e)
specifying the conditions subject to which the Certifying Authorities shall conduct their
business;
(f)
specifying the content of written, printed or visual material and advertisements that may be
distributed or used in respect of a Electronic Signature Certificate and the Public Key;
(g)
specifying the form and content of a Electronic Signature Certificate and the key;
(h)
specifying the form and manner in which accounts shall be maintained by the Certifying
Authorities;
(i)
specifying the terms and conditions subject to which auditors may be appointed and the
remuneration to be paid to them;
(j)
facilitating the establishment of any electronic system by a Certifying Authority either solely
or jointly with other Certifying Authorities and regulation of such systems;
(k)
specifying the manner in which the Certifying Authorities shall conduct their dealings with the
subscribers;
(l)
resolving any conflict of interests between the Certifying Authorities and the subscribers;
(m)
laying down the duties of the Certifying Authorities;
(n)
maintaining a data-base containing the disclosure record of every Certifying Authority
containing such particulars as may be specified by regulations, which shall be accessible to public.
19
Recognition of foreign Certifying Authorities
(1)
Subject to such conditions and restrictions as may be specified by regulations, the Controller
may with the previous approval of the Central Government, and by notification in the Official Gazette,
recognize any foreign Certifying Authority as a Certifying Authority for the purposes of this Act.
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(2)
Where any Certifying Authority is recognized under sub-section (1), the Electronic Signature
Certificate issued by such Certifying Authority shall be valid for the purposes of this Act.
(3)
The Controller may if he is satisfied that any Certifying Authority has contravened any of the
conditions and restrictions subject to which it was granted recognition under sub-section (1) he may,
for reasons to be recorded in writing, by notification in the Official Gazette, revoke such recognition.
20
(Omitted vide ITA 2008)
21
License to issue electronic signature certificates
(1)
Subject to the provisions of sub-section (2), any person may make an application, to the
Controller, for a license to issue Electronic Signature Certificates.
(2)
No license shall be issued under sub-section (1), unless the applicant fulfills such requirements
with respect to qualification, expertise, manpower, financial resources and other infrastructure
facilities, which are necessary to issue Electronic Signature Certificates as may be prescribed by the
Central Government.
(3)
A license granted under this section shall –
(a)
(b)
(c)
22
be valid for such period as may be prescribed by the Central Government;
not be transferable or heritable;
be subject to such terms and conditions as may be specified by the regulations.
Application for license
(1)
Every application for issue of a license shall be in such form as may be prescribed by the
Central Government .
(2)
Every application for issue of a license shall be accompanied by(a)
(b)
(c)
(d)
23
a certification practice statement;
a statement including the procedures with respect to identification of the applicant;
payment of such fees, not exceeding twenty-five thousand rupees as may be
prescribed by the Central Government;
such other documents, as may be prescribed by the Central Government.
Renewal of license
An application for renewal of a license shall be –
(a)
(b)
24
in such form;
accompanied by such fees, not exceeding five thousand rupees, as may be prescribed
by the Central Government and shall be made not less than forty-five days before the
date of expiry of the period of validity of the license:
Procedure for grant or rejection of license
The Controller may, on receipt of an application under sub-section (1) of section 21, after
considering the documents accompanying the application and such other factors, as he deems fit,
grant the license or reject the application:
Provided that no application shall be rejected under this section unless the applicant has
been given a reasonable opportunity of presenting his case.
25
Suspension of License
(1)
The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a
Certifying Authority has –
(a)
made a statement in, or in relation to, the application for the issue or renewal of the
license, which is incorrect or false in material particulars;
11
(b)
(c)
(d)
failed to comply with the terms and conditions subject to which the license was
granted;
failed to maintain the standards specified in Section 30 [Substituted for the words
"under clause (b) of sub-section (2) of section 20;" vide amendment dated
September 19, 2002]
contravened any provisions of this Act, rule, regulation or order made there under,
revoke the license:
Provided that no license shall be revoked unless the Certifying Authority has been given a
reasonable opportunity of showing cause against the proposed revocation.
(2)
The Controller may, if he has reasonable cause to believe that there is any ground for
revoking a license under sub-section (1), by order suspend such license pending the completion of any
enquiry ordered by him:
Provided that no license shall be suspended for a period exceeding ten days unless the
Certifying Authority has been given a reasonable opportunity of showing cause against the proposed
suspension.
(3)
No Certifying Authority whose license has been suspended shall issue any Electronic Signature
Certificate during such suspension.
26
Notice of suspension or revocation of license.
(1)
Where the license of the Certifying Authority is suspended or revoked, the Controller shall
publish notice of such suspension or revocation, as the case may be, in the data-base maintained by
him.
(2)
Where one or more repositories are specified, the Controller shall publish notices of such
suspension or revocation, as the case may be, in all such repositories.
Provided that the data-base containing the notice of such suspension or revocation, as the
case may be, shall be made available through a web site which shall be accessible round the clock
Provided further that the Controller may, if he considers necessary, publicize the contents of
the data-base in such electronic or other media, as he may consider appropriate.
27
Power to delegate.
The Controller may, in writing, authorize the Deputy Controller, Assistant Controller or any
officer to exercise any of the powers of the Controller under this Chapter.
28
Power to investigate contraventions.
(1)
The Controller or any officer authorized by him in this behalf shall take up for investigation any
contravention of the provisions of this Act, rules or regulations made there under.
(2)
The Controller or any officer authorized by him in this behalf shall exercise the like powers
which are conferred on Income-tax authorities under Chapter XIII of the Income-tax Act, 1961 and
shall exercise such powers, subject to such limitations laid down under that Act.
29
Access to computers and data.
(1)
Without prejudice to the provisions of sub-section (1) of section 69, the Controller or any
person authorized by him shall, if he has reasonable cause to suspect that any contravention of the
provisions of this chapter made there under has been committed, have access to any computer
system, any apparatus, data or any other material connected with such system, for the purpose of
searching or causing a search to be made for obtaining any information or data contained in or
available to such computer system. (Amended vide ITAA 2008)
(2)
For the purposes of sub-section (1), the Controller or any person authorized by him may, by
order, direct any person in charge of, or otherwise concerned with the operation of the computer
system, data apparatus or material, to provide him with such reasonable technical and other assistant
as he may consider necessary.
12
30
Certifying Authority to follow certain procedures.
Every Certifying Authority shall(a)
(b)
(c)
(ca)
(cb)
(d)
31
make use of hardware, software, and procedures that are secure from intrusion and
misuse:
provide a reasonable level of reliability in its services which arc reasonably suited to
the performance of intended functions;
adhere to security procedures to ensure that the secrecy and privacy of the Electronic
Signature are assured (Amended vide ITAA 2008)
be the repository of all Electronic Signature Certificates issued under this Act (Inserted
vide ITAA 2008)
publish information regarding its practices, Electronic Signature Certificates and
current status of such certificates; and (Inserted vide ITAA 2008)
observe such other standards as may be specified by regulations.
Certifying Authority to ensure compliance of the Act, etc.
Every Certifying Authority shall ensure that every person employed or otherwise engaged by it
complies, in the course of his employment or engagement, with the provisions of this Act, rules,
regulations and orders made there under.
32.
Display of license.
Every Certifying Authority shall display its license at a conspicuous place of the premises in
which it carries on its business.
33
Surrender of license
(1)
Every Certifying Authority whose license is suspended or revoked shall immediately after such
suspension or revocation, surrender the license to the Controller.
(2)
Where any Certifying Authority fails to surrender a license under sub-section (1), the person in
whose favour a license is issued, shall be guilty of an offense and shall be punished with imprisonment
which may extend up to six months or a fine which may extend up to ten thousand rupees or with
both.
34
Disclosure
(1)
Every Certifying Authority shall disclose in the manner specified by regulations
(a)
(b)
(c)
(d)
its Electronic Signature Certificate (Amended vide ITAA 2008)
any certification practice statement relevant thereto;
notice of revocation or suspension of its Certifying Authority certificate, if any; and
any other fact that materially and adversely affects either the reliability of a Electronic
Signature Certificate, which that Authority has issued, or the Authority's ability to
perform its services
(2)
Where in the opinion of the Certifying Authority any event has occurred or any situation has
arisen which may materially and adversely affect the integrity of its computer system or the conditions
subject to which a Electronic Signature Certificate was granted, then, the Certifying Authority shall(a)
(b)
use reasonable efforts to notify any person who is likely to be affected by that
occurrence; or
act in accordance with the procedure specified in its certification practice statement to
deal with such event or situation.
VII. ELECTRONIC SIGNATURE CERTIFICATES
35
Certifying Authority to issue Electronic Signature Certificate
13
(1)
Any person may make an application to the Certifying Authority for the issue of a Digital
Signature Certificate in such form as may be prescribed by the Central Government.
(2)
Every such application shall be accompanied by such fee not exceeding twenty-five thousand
rupees as may be prescribed by the Central Government, to be paid to the Certifying Authority:
Provided that while prescribing fees under sub-section (2) different fees may be prescribed
for different classes of applicants.
(3)
Every such application shall be accompanied by a certification practice statement or where
there is no such statement, a statement containing such particulars, as may be specified by
regulations.
(4)
On receipt of an application under sub-section (1), the Certifying Authority may, after
consideration of the certification practice statement or the other statement under sub-section (3) and
after making such enquiries as it may deem fit, grant the Digital Signature Certificate or for reasons to
be recorded in writing, reject the application
Provided that no application shall be rejected unless the applicant
reasonable opportunity of showing cause against the proposed rejection.
36.
has been given a
Representations upon issuance of Digital Signature Certificate
A Certifying Authority while issuing a Digital Signature Certificate shall certify that –
(a)
(b)
(c)
(ca)
(cb)
(d)
(e)
(f)
37.
it has complied with the provisions of this Act and the rules and regulations made
there under;
it has published the Digital Signature Certificate or otherwise made it available to such
person relying on it and the subscriber has accepted it;
the subscriber holds the private key corresponding to the public key, listed in the
Digital Signature Certificate;
the subscriber holds a private key which is capable of creating a digital signature
(Inserted vide ITAA 2008)
the public key to be listed in the certificate can be used to verify a digital signature
affixed by the private key held by the subscriber (Inserted vide ITAA 2008)
the subscriber's public key and private key constitute a functioning key pair;
the information contained in the Digital Signature Certificate is accurate; and
it has no knowledge of any material fact, which if it had been included in the Digital
Signature Certificate would adversely affect the reliability of the representations made
in clauses (a) to (d).
Suspension of Digital Signature Certificate.
(1)
Subject to the provisions of sub-section (2), the Certifying Authority which has issued a Digital
Signature Certificate may suspend such Digital Signature Certificate –
(a)
on receipt of a request to that effect from (i)
the subscriber listed in the Digital Signature Certificate; or
(ii)
any person duly authorized to act on behalf of that subscriber;
(b)
if it is of opinion that the Digital Signature Certificate should be suspended in public
interest
(2)
A Digital Signature Certificate shall not be suspended for a period exceeding fifteen days
unless the subscriber has been given an opportunity of being heard in the matter.
(3)
On suspension of a Digital Signature Certificate under this section, the Certifying Authority
shall communicate the same to the subscriber.
38.
Revocation of Digital Signature Certificate.
14
(1)
A Certifying Authority may revoke a Digital Signature Certificate issued by it
(a)
(b)
(c)
where the subscriber or any other person authorized by him makes a request to that
effect; or
upon the death of the subscriber; or
upon the dissolution of the firm or winding up of the company where the subscriber is
a firm or a company.
(2)
Subject to the provisions of sub-section (3) and without prejudice to the provisions of subsection (1), a Certifying Authority may revoke a Digital Signature Certificate which has been issued by
it at any time, if it is of opinion that (a)
(b)
(c)
(d)
a material fact represented in the Digital Signature Certificate is false or has been
concealed;
a requirement for issuance of the Digital Signature Certificate was not satisfied;
the Certifying Authority's private key or security system was compromised in a
manner materially affecting the Digital Signature Certificate's reliability;
the subscriber has been declared insolvent or dead or where a subscriber is a firm or
a company, which has been dissolved, wound-up or otherwise ceased to exist.
(3)
A Digital Signature Certificate shall not be revoked unless the subscriber has been given an
opportunity of being heard in the matter.
(4)
On revocation of a Digital Signature Certificate under this section, the Certifying Authority
shall communicate the same to the subscriber.
39.
Notice of suspension or revocation.
(1)
Where a Digital Signature Certificate is suspended or revoked under section 37 or section 38,
the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in
the repository specified in the Digital Signature Certificate for publication of such notice.
(2)
Where one or more repositories are specified, the Certifying Authority shall publish notices of
such suspension or revocation, as the case may be, in all such repositories.
VIII
40
Generating Key Pair
Where any Digital Signature Certificate, the public key of which corresponds to the private key
of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a
subscriber, (*) the subscriber shall generate that [substituted for "the" vide amendment dated
19/09/2002] key pair by applying the security procedure. [* word "then"-deleted vide amendment
dated 19/9/2002],
40A
Duties of subscriber of Electronic Signature Certificate
In respect of Electronic Signature Certificate the subscriber shall perform such duties as may
be prescribed. (Inserted Vide ITAA 2008)
41
Acceptance of Digital Signature Certificate.
(1)
A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or
authorizes the publication of a Digital Signature Certificate (a)
(b)
to one or more persons;
in a repository, or otherwise demonstrates his approval of the Digital Signature
Certificate in any manner.
(2)
By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely
on the information contained in the Digital Signature Certificate that -
15
(a)
(b)
(c)
42
the subscriber holds the private key corresponding to the public key listed in the
Digital Signature Certificate and is entitled to hold the same;
all representations made by the subscriber to the Certifying Authority and all material
relevant to the information contained in the Digital Signature Certificate are true;
all information in the Digital Signature Certificate that is within the knowledge of the
subscriber is true.
Control of Private key
(1)
Every subscriber shall exercise reasonable care to retain control of the private key
corresponding to the r public key listed in his Digital Signature Certificate and take all steps to prevent
its disclosure.[ "to a person not authorized to affix the digital signature of the subscriber".-Omitted
vide amendment dated 19/09/2002]
(2)
If the private key corresponding to the public key listed in the Digital Signature Certificate has
been compromised, then, the subscriber shall communicate the same without any delay to the
Certifying Authority in such manner as may be specified by the regulations.
Explanation - For the removal of doubts, it is hereby declared that the subscriber shall be
liable till he has informed the Certifying Authority that the private key has been compromised.
IX. PENALTIES , COMPENSATION AND ADJUDICATION (Amended vide ITAA-2006/8)
43
Penalty and Compensation for damage to computer, computer system, etc (Amended
vide ITAA-2008)
If any person without permission of the owner or any other person who is incharge of a
computer, computer system or computer network (a) accesses or secures access to such computer, computer system or computer network or
computer resource (ITAA2008)
(b) downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or stored in any
removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into
any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network,
data, computer data base or any other programmes residing in such computer, computer system or
computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer,
computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system
or computer network in contravention of the provisions of this Act, rules or regulations made
thereunder,
(h) charges the services availed of by a person to the account of another person by tampering
with or manipulating any computer, computer system, or computer network,
(i) destroys, deletes or alters any information residing in a computer resource or diminishes its
value or utility or affects it injuriously by any means (Inserted vide ITAA-2008)
(i) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter
any computer source code used for a computer resource with an intention to cause damage, (Inserted
vide ITAA 2008)
16
he shall be liable to pay damages by way of compensation not exceeding one crore rupees to
the person so affected. (change vide ITAA 2008)
Explanation - for the purposes of this section (i)
43 A
"Computer Contaminant" means any set of computer instructions that are designed (a)
to modify, destroy, record, transmit data or programme residing within a
computer, computer system or computer network; or
(b)
by any means to usurp the normal operation of the computer, computer
system, or computer network;
(ii)
"Computer Database" means a representation of information, knowledge, facts,
concepts or instructions in text, image, audio, video that are being prepared or have
been prepared in a formalised manner or have been produced by a computer,
computer system or computer network and are intended for use in a computer,
computer system or computer network;
(iii)
"Computer Virus" means any computer instruction, information, data or programme
that destroys, damages, degrades or adversely affects the performance of a computer
resource or attaches itself to another computer resource and operates when a
programme, data or instruction is executed or some other event takes place in that
computer resource;
(iv)
"Damage" means to destroy, alter, delete, add, modify or re-arrange any computer
resource by any means.
(v)
"Computer Source code" means the listing of programmes, computer commands,
design and layout and programme analysis of computer resource in any form (Inserted
vide ITAA 2008)
Compensation for failure to protect data (Inserted vide ITAA 2006)
Where a body corporate, possessing, dealing or handling any sensitive personal data or
information in a computer resource which it owns, controls or operates, is negligent in implementing
and maintaining reasonable security practices and procedures and thereby causes wrongful loss or
wrongful gain to any person, such body corporate shall be liable to pay damages by way of
compensation, not exceeding five crore rupees, to the person so affected. (Change vide ITAA 2008)
Explanation: For the purposes of this section
44
(i)
"body corporate" means any company and includes a firm, sole proprietorship or other
association of individuals engaged in commercial or professional activities
(ii)
"reasonable security practices and procedures" means security practices and
procedures designed to protect such information from unauthorised access, damage,
use, modification, disclosure or impairment, as may be specified in an agreement
between the parties or as may be specified in any law for the time being in force and
in the absence of such agreement or any law, such reasonable security practices and
procedures, as may be prescribed by the Central Government in consultation with
such professional bodies or associations as it may deem fit.
(iii)
"sensitive personal data or information" means such personal information as may be
prescribed by the Central Government in consultation with such professional bodies or
associations as it may deem fit.
Penalty for failure to furnish information, return, etc
If any person who is required under this Act or any rules or regulations made thereunder to -
17
45
(a)
furnish any document, return or report to the Controller or the Certifying Authority,
fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and
fifty thousand rupees for each such failure;
(b)
file any return or furnish any information, books or other documents within the time
specified therefor in the regulations, fails to file return or furnish the same within the
time specified therefore in the regulations, he shall be liable to a penalty not
exceeding five thousand rupees for every day during which such failure continues:
(c)
maintain books of account or records, fails to maintain the same, he shall be liable to
a penalty not exceeding ten thousand rupees for every day during which the failure
continues.
Residuary Penalty
Whoever contravenes any rules or regulations made under this Act, for the contravention of
which no penalty has been separately provided, shall be liable to pay a compensation not exceeding
twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding
twenty-five thousand rupees.
46
Power to Adjudicate
(1)
For the purpose of adjudging under this Chapter whether any person has committed a
contravention of any of the provisions of this Act or of any rule, regulation, direction or order made
thereunder which renders him liable to pay penalty or compensation, the Central Government shall,
subject to the provisions of sub-section(3), appoint any officer not below the rank of a Director to the
Government of India or an equivalent officer of a State Government to be an adjudicating officer for
holding an inquiry in the manner prescribed by the Central Government. ( amended vide ITAA
2008)
(1A)
The adjudicating officer appointed under sub-section (1) shall exercise jurisdiction to
adjudicate matters in which the claim for injury or damage does not exceed rupees five crore
Provided that the jurisdiction in respect of claim for injury or damage exceeding rupees five
croore shall vest with the competent court. (Inserted Vide ITAA 2008)
(2)
The adjudicating officer shall, after giving the person referred to in sub-section (1) a
reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied
that the person has committed the contravention, he may impose such penalty as he thinks fit in
accordance with the provisions of that section.
(3)
No person shall be appointed as an adjudicating officer unless he possesses such experience in
the field of Information Technology and Legal or Judicial experience as may be prescribed by the
Central Government.
(4)
Where more than one adjudicating officers are appointed, the Central Government shall
specify by order the matters and places with respect to which such officers shall exercise their
jurisdiction.
(5)
Every adjudicating officer shall have the powers of a civil court which are conferred on the
Cyber Appellate Tribunal under sub-section (2) of section 58, and –
(a)
all proceedings before it shall be deemed to be judicial proceedings
meaning of sections 193 and 228 of the Indian Penal Code;
within the
(b)
shall be deemed to be a civil court for the purposes of sections 345 and
Code of Criminal Procedure, 1973.
346 of the
(c)
shall be deemed to be a Civil Court for purposes of order XXI of the Civil Procedure
Code, 1908 (Inserted vide ITAA 2008)
18
47
Factors to be taken into account by the adjudicating officer
While adjudging the quantum of compensation under this Chapter the adjudicating officer shall
have due regard to the following factors, namely (a)
(b)
(c)
the
the
the
the
amount of gain of unfair advantage, wherever quantifiable, made as a result of
default;
amount of loss caused to any person as a result of the default;
repetitive nature of the default
X. THE CYBER APPELLATE TRIBUNAL (Amended vide ITA-2008)
48
Establishment of Cyber Appellate Tribunal
(1)
The Central Government shall, by notification, establish one or more appellate tribunals to be
known as the Cyber Appellate Tribunal.
(2)
The Central Government shall also specify, in the notification referred to in sub-section (1),
the matters and places in relation to which the Cyber Appellate Tribunal may exercise jurisdiction.
49
Composition of Cyber Appellate Tribunal (Substituted vide ITAA 2008)
(1)
The Cyber Appellate Tribunal shall consist of a Chairperson and such number of other
Members, as the Central Government may, by notification in the Official Gazette, appoint (Inserted
vide ITAA-2008)
Provided that the person appointed as the Presiding Officer of the Cyber Appellate Tribunal
under the provisions of this Act immediately before the commencement of the Information Technology
(Amendment) Act 2008 shall be deemed to have been appointed as the Chairperson of the said Cyber
Appellate Tribunal under the provisions of this Act as amended by the Information Technology
(Amendment) Act, 2008 (Inserted Vide ITAA 2008)
(2)
The selection of Chairperson and Members of the Cyber Appellate Tribunal shall be made by
the Central Government in consultation with the Chief Justice of India. (Inserted vide ITAA-2008)
(3)
Subject to the provisions of this Act(a)
the jurisdiction, powers and authority of the Cyber Appellate Tribunal may be
exercised by the Benches thereof
(b)
a Bench may be constituted by the Chairperson of the Cyber Appellate Tribunal with
one or two members of such Tribunal as the Chairperson may deem fit.
Provided that every Bench shall be presided over by the Chairperson or the Judicial Member
appointed under sub-section (3) of section 50 (ITAA 2008)
(c)
the Benches of the Cyber Appellate Tribunal shall sit at New Delhi and at such other
places as the Central Government may, in consultation with the Chairperson of the
Cyber Appellate Tribunal, by notification in the Official Gazette, specify.
(d)
the Central Government shall, by notification in the Official Gazette, specify the areas
in relation to which each Bench of the Cyber Appellate Tribunal may exercise its
jurisdiction.(Inserted vide ITAA-2008)
(4)
Notwithstanding anything contained in sub-section (3), the Chairperson of the Cyber Appellate
Tribunal may transfer a Member of such Tribunal from one Bench to another Bench (Inserted vide
ITAA-2008)
(5)
If at any stage of the hearing of any case or matter, it appears to the Chairperson or a
Member of the Cyber Appellate Tribunal that the case or matter is of such a nature that it ought to be
19
heard by a Bench consisting of more Members, the case or matter may be transferred by the
Chairperson to such Bench as the Chairperson may deem fit. (Inserted vide ITAA-2008)
50
Qualifications for appointment as Chairperson and Members of Cyber Appellate
Tribunal (Substituted vide ITAA 2006)
(1)
A person shall not be qualified for appointment as a Chairperson of the Cyber Appellate
Tribunal unless he is, or has been, or is qualified to be, a Judge of a High Court; (substituted vide
ITAA-2008)
(2)
The Members of the Cyber Appellate Tribunal, except the Judicial Member to be appointed
under sub-section (3), shall be appointed by the Central Government from amongst persons, having
special knowledge of and professional experience in, information technology, telecommunication,
industry, management or consumer affairs.
Provided that a person shall not be appointed as a Member, unless he is, or has been, in the
service of the Central Government or a State Government, and has held the post of Additional
secretary to the Government of India or any equivalent post in the Central Government or State
Government for a period of not less than two one years or joint secretary to the Government of India
or any equivalent post in the central Government or State Government for a period of not less than
seven years. (Inserted vide ITAA-2008)
(3)
The Judicial Members of the Cyber Appellate Tribunal shall be appointed by the Central
Government from amongst persons who is or has been a member of the Indian Legal Service and has
held the post of Additional Secretary for a period of not less than one year or Grade I post of that
service for a period of not less than five years.
51
Term of office, conditions of service etc of Chairperson and Members (Substituted
vide ITAA 2008)
(1)
The Chairperson or Member of the Cyber Appellate Tribunal shall hold office for a term of five
years from the date on which he enters upon his office or until he attains the age of sixty-five years,
whichever is earlier. (Inserted vide ITAA 2008)
(2)
Before appointing any person as the Chairperson or Member of the Cyber Appellate Tribunal,
the Central Government shall satisfy itself that the person does not have any such financial or other
interest as is likely to affect prejudicially his functions as such Chairperson or Member. (Inserted vide
ITAA 2008)
(3)
An officer of the Central Government or State Government on his selection as the Chairperson
or Member of the Cyber Appellate Tribunal, as the case may be, shall have to retire from service
before joining as such Chairperson or Member. (Inserted vide ITAA 2008)
52
Salary. allowance and other terms and conditions of service of Chairperson and
Member. (Substituted vide ITAA 2008)
The salary and allowances payable to, and the other terms and conditions of service including
pension, gratuity and other retirement benefits of, the Chairperson or a Member of Cyber Appellate
Tribunal shall be such as may be prescribed: (Inserted vide ITAA 2008)
52A
Powers of superintendence, direction, etc (Inserted vide ITAA 2008)
The Chairperson of he Cyber Appellate Tribunal shall have powers of general superintendence
and directions in the conduct of the affairs of that Tribunal and he shall, in addition to presiding over
the meetings of the Tribunal, exercise and discharge such powers and functions of the Tribunal as may
be prescribed.
52B
Distribution of Business among Benches (Inserted vide ITAA 2008)
Where Benches are constituted, the Chairperson of the Cyber Appellate Tribunal may, by
order,distribute the business of that Tribunal amongst the Benches and also the matters to be dealt
with by each Bench
20
52C
Powers of the Chairperson to transfer cases (Inserted vide ITAA 2008)
On the application of any of the parties and after notice to the parties, and after hearing such
of them as he may deem proper to be heard, or suo motu without such notice, the Chairperson of the
Cyber Appellate Tribunal may transfer any case pending before one Bench, for disposal to any other
Bench
52D
Decision by majority (Inserted vide ITAA 2008)
If the Members of a Bench consisting of two Members differ in opinion on any point, they shall
state the point or points on which they differ, and make a reference to the Chairperson of the Cyber
Appellate Tribunal who shall hear the point or points himself and such point or points shall be decided
according to the opinion of the majority of the Members who have heard the case, including those who
first heard it.
53
Filling up of vacancies (Amended vide ITAA 2008)
If, for reason other than temporary absence, any vacancy occurs in the office of the Presiding
officer Chairperson or Member as the case may be of a Cyber Appellate Tribunal, then the Central
Government shall appoint another person in accordance with the provisions of this Act to fill the
vacancy and the proceedings may be continued before the Cyber Appellate Tribunal from the stage at
which the vacancy is filled.
54
Resignation and removal (Amended vide ITAA 2008)
(1)
The Presiding officer Chairperson or Member of the Cyber Appellate Tribunal may, by notice in
writing under his hand addressed to the Central Government, resign his office:
Provided that the said Presiding officer Chairperson or Member shall, unless he is permitted
by the Central Government to relinquish his office sooner, continue to hold office until the expiry of
three months from the date of receipt of such notice or until a person duly appointed as his successor
enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2)
The Presiding officer Chairperson or Member of a Cyber Appellate Tribunal shall not be
removed from his office except by an order by the Central Government on the ground of proved
misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which the
Chairperson or Member concerned has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of these charges.
(3)
The Central Government may, by rules, regulate the procedure for the investigation of
misbehaviour or incapacity of the aforesaid Presiding officer Chairperson or Member.
55
Orders constituting Appellate Tribunal to be final and not to invalidate its
proceedings (Inserted vide ITAA 2008)
No order of the Central Government appointing any person as the Chairperson or Member of a
Cyber Appellate Tribunal shall be called in question in any manner and no act or proceeding before a
Cyber Appellate Tribunal shall be called in question in any manner on the ground merely of any defect
in the constitution of a Cyber Appellate Tribunal.
56
Staff of the Cyber Appellate Tribunal (Error in amendment...item 28)
(1)
The Central Government shall provide the Cyber Appellate Tribunal with such officers and
employees as the Government may think fit.
(2)
The officers and employees of the Cyber Appellate Tribunal shall discharge their functions
under general superintendence of the Presiding Officer.
(3)
The salaries and allowances and other conditions of service of the officers and employees of
the Cyber Appellate Tribunal shall be such as may be prescribed by the Central Government.
57
Appeal to Cyber Regulations Appellate Tribunal
21
(1)
Save as provided in sub-section (2), any person aggrieved by an order made by a Controller
or an adjudicating officer under this Act may prefer an appeal to a Cyber Appellate Tribunal having
jurisdiction in the matter
(2)
No appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating
officer with the consent of the parties.
(3)
Every appeal under sub-section (1) shall be filed within a period of forty-five days from the
date on which a copy of the order made by the Controller or adjudicating officer is received by the
person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Cyber Appellate Tribunal may entertain an appeal after the expiry of the
said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that
period.
(4)
On receipt of an appeal under sub-section (1), the Cyber Appellate Tribunal may, after giving
the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or setting aside the order appealed against
(5)
The Cyber Appellate Tribunal shall send a copy of every order made by it to the parties to the
appeal and to the concerned Controller or adjudicating officer.
(6)
The appeal filed before the Cyber Appellate Tribunal under sub-section (1) shall be dealt with
by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally
within six months from the date of receipt of the appeal.
58
Procedure and Powers of the Cyber Appellate Tribunal
(1)
The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code of
Civil Procedure, 1908 but shall be guided by the principles of natural justice and, subject to the other
provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have powers to regulate its
own procedure including the place at which it shall have its sittings.
(2)
The Cyber Appellate Tribunal shall have, for the purposes of discharging their functions under
this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while
trying a suit, in respect of the following matters, namely (a)
(b)
(c)
(d)
(e)
(f)
(g)
summoning and enforcing the attendance of any person and examining him on oath;
requiring the discovery and production of documents or other electronic records;
receiving evidence on affidavits;
issuing commissions for the examination of witnesses or documents;
reviewing its decisions;
dismissing an application for default or deciding it ex parte
any other matter which may be prescribed
Every proceeding before the Cyber Appellate Tribunal shall be deemed .to be a judicial
proceeding within the meaning of sections 193 arid 228, and for the purposes of section 196 of the
Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil court for the
purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
59
Right to legal representation
The appellant may either appear in person or authorize one or more legal practitioners or any
of its officers to present his or its case before the Cyber Appellate Tribunal Limitation
60
Limitation
The provisions of the Limitation Act, 1963, shall, as far as may be, apply to an appeal made to
the Cyber Appellate Tribunal.
61
Civil court not to have jurisdiction (Amended vide ITAA 2008)
22
No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter
which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted
under this Act is empowered by or under this Act to determine and no injunction shall be granted by
any court or other authority in respect of any action taken or to be taken in pursuance of any power
conferred by or under this Act.
Provided that the court may exercise jurisdiction in cases where the claim for injury or damage
suffered by any person exceeds the maximum amount which can be awarded under this Chapter.
(Inserted vide ITAA 2006)
62
Appeal to High court
Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an
appeal to the High Court within sixty days from the date of communication of the decision or order of
the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal within the said period, allow it to be filed within a further period
not exceeding sixty days.
63
Compounding of Contravention
(1)
Any contravention under this Act [substituted for "Chapter" vide amendment dated
19/09/2002] may, either before or after the institution of adjudication proceedings, be compounded
by the Controller or such other officer as may be specially authorized by him in this behalf or by the
adjudicating officer, as the case may be, subject to such conditions as the Controller or such other
officer or the adjudicating officer may specify:
Provided that such sum shall not, in any case, exceed the maximum amount of the penalty
which may be imposed under this Act for the contravention so compounded.
(2)
Nothing in sub-section (1) shall apply to a person who commits the same or similar
contravention within a period of three years from the date on which the first contravention, committed
by him, was compounded.
Explanation - For the purposes of this sub-section, any second or subsequent contravention
committed after the expiry of a period of three years from the date on which the contravention was
previously compounded shall be deemed to be a first contravention.
(3)
Where any contravention has been compounded under sub-section (1), no proceeding or
further proceeding, as the case may be, shall be taken against the person guilty of such contravention
in respect of the contravention so compounded.
64
Recovery of Penalty or compensation (Amended vide ITAA 2006)
A penalty imposed or compensation awarded under this Act, if it is not paid, shall be recovered
as an arrear of land revenue and the license or the Electronic Signature Certificate, as the case may
be, shall be suspended till the penalty is paid.
XI. OFFENCES
65
Tampering with Computer Source Documents
Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly
causes another to conceal, destroy or alter any computer source code used for a computer, computer
programme, computer system or computer network, when the computer source code is required to be
kept or maintained by law for the time being in force, shall be punishable with imprisonment up to
three years, or with fine which may extend up to two lakh rupees, or with both.
23
Explanation - For the purposes of this section, "Computer Source Code" means the listing of
programmes, Computer Commands, Design and layout and programme analysis of computer resource
in any form.
66
Computer Related Offences (Substituted vide ITAA 2008)
If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be
punishable with imprisonment for a term which may extend to two three years or with fine which may
extend to five lakh rupees or with both.
Explanation: For the purpose of this section,a)
the word "dishonestly" shall have the meaning assigned to it in section 24 of the
Indian Penal Code;
b)
the word "fraudulently" shall have the meaning assigned to it in section 25 of the
Indian Penal Code.
66 A Punishment for sending offensive messages through communication service, etc.
( Introduced vide ITAA 2008)
Any person who sends, by means of a computer resource or a communication device,a)
any information that is grossly offensive or has menacing character; or
b)
any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred, or ill will, persistently makes by making use of such computer
resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient about
the origin of such messages (Inserted vide ITAA 2008)
shall be punishable with imprisonment for a term which may extend to two three years and
with fine.
Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail
Message" means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text, image,
audio, video and any other electronic record, which may be transmitted with the message.
66 B Punishment for dishonestly receiving stolen computer resource or communication
device (Inserted Vide ITA 2008)
Whoever dishonestly
device knowing or having
communication device, shall
may extend to three years or
66C
receives or retains any stolen computer resource or communication
reason to believe the same to be stolen computer resource or
be punished with imprisonment of either description for a term which
with fine which may extend to rupees one lakh or with both.
Punishment for identity theft. (Inserted Vide ITA 2008)
Whoever, fraudulently or dishonestly make use of the electronic signature, password or any
other unique identification feature of any other person, shall be punished with imprisonment of either
description for a term which may extend to three years and shall also be liable to fine which may
extend to rupees one lakh.
66D Punishment for cheating by personation by using computer resource
(Inserted Vide ITA 2008)
24
Whoever, by means of any communication device or computer resource cheats by
personation, shall be punished with imprisonment of either description for a term which may extend to
three years and shall also be liable to fine which may extend to one lakh rupees.
66E.
Punishment for violation of privacy. (Inserted Vide ITA 2008)
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private
area of any person without his or her consent, under circumstances violating the privacy of that
person, shall be punished with imprisonment which may extend to three years or with fine not
exceeding two lakh rupees, or with both
Explanation.- For the purposes of this section—
66F.
(1)
(a)
―transmit‖ means to electronically send a visual image with the intent that it be viewed
by a person or persons;
(b)
―capture‖, with respect to an image, means to videotape, photograph, film or record
by any means;
(c)
―private area‖ means the naked or undergarment clad genitals, pubic area, buttocks or
female breast;
(d)
―publishes‖ means reproduction in the printed or electronic form and making it
available for public;
(e)
―under circumstances violating privacy‖ means circumstances in which a person can
have a reasonable expectation that—
(i)
he or she could disrobe in privacy, without being concerned that an image of his
private area was being captured; or
(ii)
any part of his or her private area would not be visible to the public, regardless of
whether that person is in a public or private place.
Punishment for cyber terrorism
Whoever,-
(A)
with intent to threaten the unity, integrity, security or sovereignty of India or to strike
terror in the people or any section of the people by –
(i)
denying or cause the denial of access to any person authorized to access
computer resource; or
(ii)
attempting to penetrate or access a computer resource without authorisation
or exceeding authorized access; or
(iii)
introducing or causing to introduce any Computer Contaminant.
and by means of such conduct causes or is likely to cause death or injuries to
persons or damage to or destruction of property or disrupts or knowing that it is likely to cause
damage or disruption of supplies or services essential to the life of the community or adversely affect
the critical information infrastructure specified under section 70, or
(B)
knowingly or intentionally penetrates or accesses a computer resource without
authorisation or exceeding authorized access, and by means of such conduct obtains access to
information, data or computer database that is restricted for reasons of the security of the State or
foreign relations; or any restricted information, data or computer database, with reasons to believe
that such information, data or computer database so obtained may be used to cause or likely to cause
injury to the interests of the sovereignty and integrity of India, the security of the State, friendly
25
relations with foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals
or otherwise, commits the offence of cyber terrorism.
(2)
Whoever commits or conspires to commit cyber terrorism shall be punishable with
imprisonment which may extend to imprisonment for life’.
67
Punishment for publishing or transmitting obscene material in electronic form
(Amended vide ITAA 2008)
Whoever publishes or transmits or causes to be published in the electronic form, any material
which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it, shall be punished on first conviction with imprisonment of either
description for a term which may extend to two three years and with fine which may extend to five
lakh rupees and in the event of a second or subsequent conviction with imprisonment of either
description for a term which may extend to five years and also with fine which may extend to ten lakh
rupees.
67 A Punishment for publishing or transmitting of material containing sexually explicit
act,etc. in electronic form (Inserted vide ITAA 2008)
Whoever publishes or transmits or causes to be published or transmitted in the electronic form
any material which contains sexually explicit act or conduct shall be punished on first conviction with
imprisonment of either description for a term which may extend to five years and with fine which may
extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of
either description for a term which may extend to seven years and also with fine which may extend
to ten lakh rupees.
Exception: This section and section 67 does not extend to any book, pamphlet, paper, writing,
drawing, painting, representation or figure in electronic form(i)
the publication of which is proved to be justified as being for the public good on the
ground that such book, pamphlet, paper, writing, drawing, painting, representation or
figure is in the interest of science,literature,art,or learning or other objects of general
concern; or
(ii)
which is kept or used bona fide for religious purposes.
67 B Punishment for publishing or transmitting of material depicting children in sexually
explicit act, etc. in electronic form.
Whoever,(a)
publishes or transmits or causes to be published or transmitted material in any
electronic form which depicts children engaged in sexually explicit act or
conduct or
(b)
creates text or digital images, collects, seeks, browses, downloads, advertises,
promotes, exchanges or distributes material in any electronic form depicting
children in obscene or indecent or sexually explicit manner or
(c)
cultivates, entices or induces children to online relationship with one or more
children for and on sexually explicit act or in a manner that may offend a
reasonable adult on the computer resource or
(d)
facilitates abusing children online or
(e)
records in any electronic form own abuse or that of others pertaining to
sexually explicit act with children,
26
shall be punished on first conviction with imprisonment of either description for a term which
may extend to five years and with a fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either description for a term which may extend
to seven years and also with fine which may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not extend to any
book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form(i)
The publication of which is proved to be justified as being for the public good on the
ground that such book, pamphlet, paper writing, drawing, painting, representation or
figure is in the interest of science, literature, art or learning or other objects of general
concern; or
(ii)
which is kept or used for bonafide heritage or religious purposes
Explanation: For the purposes of this section, "children" means a person who has not
completed the age of 18 years.
67 C
Preservation and Retention of information by intermediaries
(1)
Intermediary shall preserve and retain such information as may be specified for such duration
and in such manner and format as the Central Government may prescribe.
(2)
Any intermediary who intentionally or knowingly contravenes the provisions of sub section (1)
shall be punished with an imprisonment for a term which may extend to three years and shall also be
liable to fine.
68
Power of Controller to give directions (Amended Vide ITAA 2008)
(1)
The Controller may, by order, direct a Certifying Authority or any employee of such Authority
to take such measures or cease carrying on such activities as specified in the order if those are
necessary to ensure compliance with the provisions of this Act, rules or any regulations made there
under.
(2)
Any person who intentionally or knowingly (Inserted vide ITAA 2008) fails to comply with
any order under sub-section (1) shall be guilty of an offence and shall be liable on conviction to
imprisonment for a term not exceeding two years or to a fine not exceeding one lakh rupees or to
both.
69
Powers to issue directions for interception or monitoring or decryption of any
information through any computer resource (Substituted Vide ITAA 2008)
(1)
Where the central Government or a State Government or any of its officer specially
authorized by the Central Government or the State Government, as the case may be, in this behalf
may, if is satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity
of India, defense of India, security of the State, friendly relations with foreign States or public order or
for preventing incitement to the commission of any cognizable offence relating to above or for
investigation of any offence, it may, subject to the provisions of sub-section (2), for reasons to be
recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor
or decrypt or cause to be intercepted or monitored or decrypted any information transmitted received
or stored through any computer resource.
(2)
The Procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed
(3)
The subscriber or intermediary or any person in charge of the computer resource shall,
when called upon by any agency which has been directed under sub section (1), extend all facilities
and technical assistance to (a)
provide access to or secure access to the computer resource containing such
information; generating, transmitting, receiving or storing such information; or
27
(b)
intercept or monitor or decrypt the information, as the case may be; or
(c)
provide information stored in computer resource.
(4)
The subscriber or intermediary or any person who fails to assist the agency referred to
in sub-section (3) shall be punished with an imprisonment for a term which may extend to seven
years and shall also be liable to fine.
69 A Power to issue directions for blocking for public access of any information through
any computer resource
(1)
Where the Central Government or any of its officer specially authorized by it in this behalf is
satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India,
defense of India, security of the State, friendly relations with foreign states or public order or for
preventing incitement to the commission of any cognizable offence relating to above, it may subject to
the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of
the Government or intermediary to block access by the public or cause to be blocked for access by
public any information generated, transmitted, received, stored or hosted in any computer resource.
(2)
The procedure and safeguards subject to which such blocking for access by the public may be
carried out shall be such as may be prescribed.
(3)
The intermediary who fails to comply with the direction issued under sub-section (1) shall be
punished with an imprisonment for a term which may extend to seven years and also be liable to fine.
69B Power to authorize to monitor and collect traffic data or information through any
computer resource for Cyber Security
(1)
The Central Government may, to enhance Cyber Security and for identification, analysis and
prevention of any intrusion or spread of computer contaminant in the country, by notification in the
official Gazette, authorize any agency of the Government to monitor and collect traffic data or
information generated, transmitted, received or stored in any computer resource.
(2)
The Intermediary or any person in-charge of the Computer resource shall when called upon by
the agency which has been authorized under sub-section (1), provide technical assistance and extend
all facilities to such agency to enable online access or to secure and provide online access to the
computer resource generating , transmitting, receiving or storing such traffic data or information.
(3)
The procedure and safeguards for monitoring and collecting traffic data or information, shall
be such as may be prescribed.
(4)
Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (2)
shall be punished with an imprisonment for a term which may extend to three years and shall also be
liable to fine.
Explanation: For the purposes of this section,
(i)
(ii)
70
"Computer Contaminant" shall have the meaning assigned to it in section 43
"traffic data" means any data identifying or purporting to identify any person,
computer system or computer network or location to or from which the communication
is or may be transmitted and includes communications origin, destination, route, time,
date, size, duration or type of underlying service or any other information.
Protected system (Amended Vide ITAA-2008)
(1)
The appropriate Government may, by notification in the Official Gazette, declare any
computer resource which directly or indirectly affects the facility of Critical Information Infrastructure,
to be a protected system.
28
Explanation: For the purposes of this section, "Critical Information Infrastructure" means the
computer resource, the incapacitation or destruction of which , shall have debilitating impact on
national security, economy, public health or safety. (Substituted vide ITAA-2008)
(2)
The appropriate Government may, by order in writing, authorize the persons who are
authorized to access protected systems notified under sub-section (1)
(3)
Any person who secures access or attempts to secure access to a protected system in
contravention of the provisions of this section shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable to fine.
(4)
The Central Government shall prescribe the information security practices and procedures for
such protected system. (Inserted vide ITAA 2008)
70 A
National nodal agency. (Inserted vide ITAA 2008)
(1)
The Central Government may, by notification published in the official Gazette, designate any
organization of the Government as the national nodal agency in respect of Critical Information
Infrastructure Protection.
(2)
The national nodal agency designated under sub-section (1) shall be responsible for all
measures including Research and Development relating to protection of Critical Information
Infrastructure.
(3)
The manner of performing functions and duties of the agency referred to in sub-section (1)
shall be such as may be prescribed.
70 B Indian Computer Emergency Response Team to serve as national agency for incident
response
(1)
The Central Government shall, by notification in the Official Gazette, appoint an agency of the
government to be called the Indian Computer Emergency Response Team.
(2)
The Central Government shall provide the agency referred to in sub-section (1) with a Director
General and such other officers and employees as may be prescribed.
(3)
The salary and allowances and terms and conditions of the Director General and other officers
and employees shall be such as may be prescribed.
(4)
The Indian Computer Emergency Response Team shall serve as the national agency for
performing the following functions in the area of Cyber Security,(a)
(b)
(c)
(d)
(e)
(f)
collection, analysis and dissemination of information on cyber incidents
forecast and alerts of cyber security incidents
emergency measures for handling cyber security incidents
Coordination of cyber incidents response activities
issue guidelines, advisories, vulnerability notes and white papers relating to
information security practices, procedures, prevention, response and reporting of
cyber incidents
such other functions relating to cyber security as may be prescribed
(5)
The manner of performing functions and duties of the agency referred to in sub-section (1)
shall be such as may be prescribed.
(6)
For carrying out the provisions of sub-section (4), the agency referred to in sub-section (1)
may call for information and give direction to the service providers, intermediaries, data centers, body
corporate and any other person
(7)
Any service provider, intermediaries, data centers, body corporate or person who fails to
provide the information called for or comply with the direction under sub-section (6) , shall be
29
punishable with imprisonment for a term which may extend to one year or with fine which may extend
to one lakh rupees or with both.
(8)
No Court shall take cognizance of any offence under this section, except on a complaint made
by an officer authorized in this behalf by the agency referred to in sub-section (1)
71
Penalty for misrepresentation
Whoever makes any misrepresentation to, or suppresses any material fact from, the Controller
or the Certifying Authority for obtaining any license or Electronic Signature Certificate, as the case
may be, shall be punished with imprisonment for a term which may extend to two years, or with fine
which may extend to one lakh rupees, or with both.
72
Breach of confidentiality and privacy
Save as otherwise provided in this Act or any other law for the time being in force, any person
who, in pursuant of any of the powers conferred under this Act, rules or regulations made there under,
has secured access to any electronic record, book, register, correspondence, information, document or
other material without the consent of the person concerned discloses such electronic record, book,
register, correspondence, information, document or other material to any other person shall be
punished with imprisonment for a term which may extend to two years, or with fine which may extend
to one lakh rupees, or with both.
72 A Punishment for Disclosure of information in breach of lawful contract
(Inserted vide ITAA-2008)
Save as otherwise provided in this Act or any other law for the time being in force, any person
including an intermediary who, while providing services under the terms of lawful contract, has
secured access to any material containing personal information about another person, with the intent
to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the
consent of the person concerned, or in breach of a lawful contract, such material to any other person
shall be punished with imprisonment for a term which may extend to three years, or with a fine which
may extend to five lakh rupees, or with both.
73
Penalty for publishing electronic Signature Certificate false in certain particulars
(1)
No person shall publish a Electronic Signature Certificate or otherwise make it available to any
other person with the knowledge that
(a)
(b)
(c)
the Certifying Authority listed in the certificate has not issued it; or
the subscriber listed in the certificate has not accepted it; or
the certificate has been revoked or suspended,
unless such publication is for the purpose of verifying a digital signature created prior to such
suspension or revocation
(2)
Any person who contravenes the provisions of sub-section (1) shall be punished with
imprisonment for a term which may extend to two years, or with fine which may extend to one lakh
rupees, or with both.
74
Publication for fraudulent purpose
Whoever knowingly creates, publishes or otherwise makes available a Electronic Signature
Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term
which may extend to two years, or with fine which may extend to one lakh rupees, or with both
75
Act to apply for offence or contraventions committed outside India
(1)
Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any
offence or contravention committed outside India by any person irrespective of his nationality.
30
(2)
For the purposes of sub-section (1), this Act shall apply to an offence or contravention
committed outside India by any person if the act or conduct constituting the offence or contravention
involves a computer, computer system or computer network located in India.
76
Confiscation
Any computer, computer system, floppies, compact disks, tape drives or any other accessories
related thereto, in respect of which any provision of this Act, rules, orders or regulations made there
under has been or is being contravened, shall be liable to confiscation:
Provided that where it is established to the satisfaction of the court adjudicating the
confiscation that the person in whose possession, power or control of any such computer, computer
system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not
responsible for the contravention of the provisions of this Act, rules, orders or regulations made there
under, the court may, instead of making an order for confiscation of such computer, computer
system, floppies, compact disks, tape drives or any other accessories related thereto, make such other
order authorized by this Act against the person contravening of the provisions of this Act, rules, orders
or regulations made there under as it may think fit.
77
Compensation, penalties or confiscation not to interfere with other punishment.
(Substituted Vide ITAA-2008)
No compensation awarded, penalty imposed or confiscation made under this Act shall prevent
the award of compensation or imposition of any other penalty or punishment under any other law for
the time being in force.
77 A
Compounding of Offences
(1)
A Court of competent jurisdiction may compound offences other than offences for which the
punishment for life or imprisonment for a term exceeding three years has been provided under this
Act.
Provided that the Court shall not compound such offence where the accused is by reason of his
previous conviction, liable to either enhanced punishment or to a punishment of a different kind.
Provided further that the Court shall not compound any offence where such offence affects the
socio-economic conditions of the country or has been committed against a child below the age of 18
years or a woman.
(2)
The person accused of an offence under this act may file an application for compounding in the
court in which offence is pending for trial and the provisions of section 265 B and 265 C of Code of
Criminal Procedures, 1973 shall apply.
77 B
Offences with three years imprisonment to be cognizable
(1)
Notwithstanding anything contained in Criminal Procedure Code 1973, the offence
punishable with imprisonment of three years and above shall be cognizable and the offence punishable
with imprisonment of three years shall be bailable.
78
Power to investigate offences (Amended Vide ITAA 2008)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a police officer
not below the rank of Inspector shall investigate any offence under this Act. (Amended Vide ITAA
2008)
XII. Intermediaries Not To Be Liable In Certain cases (Substituted Vide ITA-2006)
79
Exemption from liability of intermediary in certain cases
31
(1)
Notwithstanding anything contained in any law for the time being in force but subject to the
provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party
information, data, or communication link hosted by him. (corrected vide ITAA 2008)
(2)
The provisions of sub-section (1) shall apply if(a)
the function of the intermediary is limited to providing access to a communication
system over which information made available by third parties is transmitted or
temporarily stored; or
(b)
the intermediary does not-
(c)
(3)
(i)
initiate the transmission,
(ii)
select the receiver of the transmission, and
(iii)
select or modify the information contained in the transmission
the intermediary observes due diligence while discharging his duties under this Act
and also observes such other guidelines as the Central Government may prescribe in
this behalf (Inserted Vide ITAA 2008)
The provisions of sub-section (1) shall not apply if(a)
the intermediary has conspired or abetted or aided or induced whether by threats or
promise or otherwise in the commission of the unlawful act (ITAA 2008)
(b)
upon receiving actual knowledge, or on being notified by the appropriate Government
or its agency that any information, data or communication link residing in or
connected to a computer resource controlled by the intermediary is being used to
commit the unlawful act, the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating the evidence in any manner.
Explanation:- For the purpose of this section, the expression "third party information" means
any information dealt with by an intermediary in his capacity as an intermediary.
XII A . Examiner of Electronic Evidence (Inserted Vide ITA-2006)
79A
Central Government to notify Examiner of Electronic Evidence
The Central Government may, for the purposes of providing expert opinion on electronic form
evidence before any court or other authority specify, by notification in the official Gazette, any
department, body or agency of the Central Government or a State Government as an Examiner of
Electronic Evidence.
Explanation:- For the purpose of this section, "Electronic Form Evidence" means any
information of probative value that is either stored or transmitted in electronic form and includes
computer evidence, digital audio, digital video, cell phones, digital fax machines".
XIII. MISCELLANEOUS
80
Power of Police Officer and Other Officers to Enter, Search, etc
(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any police
officer, not below the rank of a Inspector or any other officer of the Central Government or a State
Government authorized by the Central Government in this behalf may enter any public place and
search and arrest without warrant any person found therein who is reasonably suspected of having
committed or of committing or of being about to commit any offence under this Act
Explanation-
32
For the purposes of this sub-section, the expression "Public Place" includes any public
conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public.
(2)
Where any person is arrested under sub-section (1) by an officer other than a police officer,
such officer shall, without unnecessary delay, take or send the person arrested before a magistrate
having jurisdiction in the case or before the officer-in-charge of a police station.
(3)
The provisions of the Code of Criminal Procedure, 1973 shall, subject to the provisions of this
section, apply, so far as may be, in relation to any entry, search or arrest, made under this section
81
Act to have Overriding effect
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from exercising any right
conferred under the Copyright Act 1957 or the Patents Act 1970 (Inserted Vide ITAA 2008)
81-A Application of the Act to Electronic cheque and Truncated cheque-* (Inserted vide
Negotiable Instruments Amendment Act 2002, -Effective from 6th Day of February 2003.)
(1)
The provisions of this Act, for the time being in force, shall apply to, or in relation to,
electronic cheques and the truncated cheques subject to such modifications and amendments as may
be necessary for carrying out the purposes of the Negotiable Instruments Act, 1881 (26 of 1881) by
the Central Government, in consultation with the Reserve Bank of India, by notification in the Official
Gazette.
(2)
Every notification made by the Central Government under subsection (1) shall be laid, as soon
as may be after it is made, before each House of Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the successive sessions
aforesaid, both houses agree in making any modification in the notification or both houses agree that
the notification should not be made, the notification shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that any such modification or annulment
shall be without prejudice to the validity of anything previously done under the notification.
Explanation: For the purpose of this Act, the expression "electronic cheque" and "truncated
cheque" shall have the same meaning as assigned to them in section 6 of the Negotiable Instruments
Act 1881 (26 of 1881).
82
Chairperson, Members, Officers and Employees to be Public Servants (Amended Vide
ITA-2008)
The Chairperson, Members and other officers and employees of a Cyber Appellate Tribunal,
the Controller, the Deputy Controller and the Assistant Controllers shall be deemed to be Public
Servants within the meaning of section 21 of the Indian Penal Code.
83
Power to Give Direction
The Central Government may give directions to any State Government as to the carrying into
execution in the State of any of the provisions of this Act or of any rule, regulation or order made
there under.
84
Protection of Action taken in Good Faith
No suit, prosecution or other legal proceeding shall lie against the Central Government, the
State Government, the Controller or any person acting on behalf of him, the Chairperson, Members,
Adjudicating Officers and the staff of the Cyber Appellate Tribunal for anything which is in good faith
33
done or intended to be done in pursuance of this Act or any rule, regulation or order made there
under.
84 A
Modes or methods for encryption (Inserted Vide ITA-2008)
The Central Government may, for secure use of the electronic medium and for promotion of egovernance and e-commerce, prescribe the modes or methods for encryption
84 B
Punishment for abetment of offences (Inserted Vide ITA-2008)
Whoever abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this Act for the punishment of such abetment, be
punished with the punishment provided for the offence under this Act.
Explanation: An Act or offence is said to be committed in consequence of abetment, when it is
committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which
constitutes the abetment.
84 C
Punishment for attempt to commit offences (Inserted Vide ITA-2008)
Whoever attempts to commit an offence punishable by this Act or causes such an offence to
be committed, and in such an attempt does any act towards the commission of the offence, shall,
where no express provision is made for the punishment of such attempt, be punished with
imprisonment of any description provided for the offence, for a term which may extend to one-half of
the longest term of imprisonment provided for that offence, or with such fine as is provided for the
offence or with both.
85
Offences by Companies.
(1)
Where a person committing a contravention of any of the provisions of this Act or of any rule,
direction or order made there under is a Company, every person who, at the time the contravention
was committed, was in charge of, and was responsible to, the company for the conduct of business of
the company as well as the company, shall be guilty of the contravention and shall be liable to be
proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to
punishment if he proves that the contravention took place without his knowledge or that he exercised
all due diligence to prevent such contravention.
(2)
Notwithstanding anything contained in sub-section (1), where a contravention of any of the
provisions of this Act or of any rule, direction or order made there under has been committed by a
company and it is proved that the contravention has taken place with the consent or connivance of, or
is attributable to any neglect on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be deemed to be guilty of the
contravention and shall be liable to be proceeded against and punished accordingly.
ExplanationFor the purposes of this section
(i)
(ii)
86
"Company" means any Body Corporate and includes a Firm or other Association of
individuals; and
"Director", in relation to a firm, means a partner in the firm
Removal of Difficulties
(1)
If any difficulty arises in giving effect to the provisions of this Act, the Central Government
may, by order published in the Official Gazette, make such provisions not inconsistent with the
provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section after the expiry of a period of two
years from the commencement of this Act. (2) Every order made under this section shall be laid, as
soon as may be after it is made, before each House of Parliament.
34
87
Power of Central Government to make rules
(1)
The Central Government may, by notification in the Official Gazette, make rules to carry out
the provisions of this Act.
(2)
In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely
(a)
(aa)
the conditions for considering reliability of electronic signature or electronic
authentication technique under sub-section (2) of section 3A (Substituted vide ITA2008)
the procedure for ascertaining electronic signature or authentication under sub-section
(3) f section 3A(Inserted Vide ITA-2006) (Inserted vide ITAA-2008)
(ab)
the manner in which any information or matter may be authenticated by means of
electronic signature under section 5.(Inserted vide ITAA-2008)
(b)
the electronic form in which filing, issue, grant or payment shall be effected under
sub-section (1) of section 6;
(c)
the manner and format in which electronic records shall be filed or issued and the
method of payment under sub-section (2) of section 6;
(ca)
the manner in which the authorized service provider may collect, retain and
appropriate service charges under sub-section (2) of section 6A (Inserted vide ITAA2008)
the matters relating to the type of Electronic Signature, manner and format in which
it may be affixed under section 10;
(d)
(e)
(ea)
the manner of storing and affixing electronic signature creation data under section 15
(substituted vide ITAA-2008)
the security procedures and practices under section 16 (Inserted vide ITAA-2008)
(f)
the qualifications, experience and terms and conditions of service of Controller, Deputy
Controllers and Assistant Controllers, other officers and employees under section 17;
(ITAA 2008)
(g)
(omitted vide ITAA-2008)
(h)
the requirements which an applicant must fulfill under sub-section (2) of
(i)
the period of validity of license granted under clause (a) of sub-section (3) of section
21;
(j)
the form in which an application for license may be made under subsection (1) of
section 22;
(k)
the amount of fees payable under clause (c) of sub-section (2) of section
(l)
such other documents which shall accompany an application for license under clause
(d) of sub-section (2) of section 22;
(m)
the form and the fee for renewal of a license and the fee payable thereof under s
ection 23;
the form of application and fee for issue of Electronic Signature Certificate under
section 35.(Inserted vide ITAA-2008)
(ma)
(n)
the amount of late fee payable under the proviso to section 23;
(o)
the form in which application for issue of a Electronic Signature Certificate
made under sub-section (1) of section 35;
(oa)
the duties of subscribers under section 40A (Inserted vide ITAA-2008)
35
section 21;
22;
may be
(ob)
the reasonable security practices and procedures and sensitive personal data or
information under section 43A (Inserted vide ITAA-2008)
(p)
the fee to be paid to the Certifying Authority for issue of a Digital
Certificate under sub-section (2) of section 35;
(q)
the manner in which the adjudicating officer shall hold inquiry under sub-section (1)
of section 46;
(r)
the qualification and experience which the adjudicating officer shall possess under
sub-section (2) of section 46; (Ed: error in the act item number (vii). Bill mentions
correction not in the original section-"Presiding Officer" to be replaced with "Chairman
and Members")
(s)
the salary, allowances and the other terms and conditions of service of
and Members under section 52; (amended vide ITAA-2008)
(t)
the procedure for investigation of misbehaviour or incapacity of the Presiding Officer
Chairman and Members under sub-section (3) of section 54; (Ed: Error: bill mentions
corrections to (r) and (s) instead of (s) and (t)
(u)
the salary and allowances and other conditions, of service of other
employees under sub-section (3) of section 56;
(v)
the form in which appeal may be filed and the fee thereof under subsection (3) of
section 57;
(w)
the powers and functions of the Chairperson of the Cyber Appellate Tribunal under
section 52 A (substituted vide ITAA-2008)
(wa)
the information, duration, manner and form of such information to be retained and
preserved under section 67 C (ITAA 2008)
(x)
The Procedures and safeguards for interception, monitoring or decryption under subsection (2) of section 69 (ITAA 2008)
(xa)
the procedure and safeguards for blocking for access by the public under sub-section
(2) of section 69 A. (ITAA 2008)
(xb)
the procedure and safeguards for monitoring and collecting traffic data or information
under sub-section (3) of section 69 B (ITAA 2008)
(y)
the information security practices and procedures for protected system under section
70 (Inserted vide ITAA-2008)
(ya)
manner of performing functions and duties of the agency under sub-section (3) of
section 70 A (ITAA 2008)
(yb)
the officers and employees under sub-section (2) of section 70 (B) (ITAA 2008)
(yc)
salaries and allowances and terms and conditions of service of the Director General
and other officers and employees under sub-section (3) of section 70 B (ITAA 2008)
(yd)
the manner in which the functions and duties of agency shall be performed under subsection (5) of section 70 B (ITAA 2008)
the guidelines to be observed by the intermediaries under sub section (4) (2) of
section 79 (Inserted vide ITAA-2008)
(z)
(za)
Signature
the Chairman
officers and
the modes or methods for encryption under section 84A (Inserted vide ITAA-2008)
(3)
Every notification made by the Central Government under sub-section (1) of section 70 (A)
and every rule made by it shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in making any
36
modification in the regulation or both Houses agree that the regulation should not be made, the
regulation shall thereafter have effect only in such modified form or be of no effect, as the case may
be; so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that regulation. (ITAA 2008)
88
Constitution of Advisory Committee
(1)
The Central Government shall, as soon as may be after the commencement of this Act,
constitute a Committee called the Cyber Regulations Advisory Committee.
(2)
The Cyber Regulations Advisory Committee shall consist of a Chairperson and such number of
other official and non-official members representing the interests principally affected or having special
knowledge of the subject-matter as the Central Government may deem fit.
(3)
The Cyber Regulations Advisory Committee shall advise (a)
the Central Government either generally as regards any rules or for any
purpose connected with this Act;
(b)
the Controller in framing the regulations under this Act
other
(4)
There shall be paid to the non-official members of such Committee such traveling and other
allowances as the Central Government may fix.
89
Power of Controller to make Regulations
(1)
The Controller may, after consultation with the Cyber Regulations Advisory Committee and
with the previous approval of the Central Government, by notification in the Official Gazette, make
regulations consistent with this Act and the rules made there under to carry out the purposes of this
Act .
(2)
In particular, and without prejudice to the generality of the foregoing power, such regulations
may provide for all or any of the following matters, namely
(a)
the particulars relating to maintenance of data-base containing the disclosure record
of every Certifying Authority under clause (n) [Substituted for (m) vide amendment
dated 19/09/2002] of section 18;
(b)
the conditions and restrictions subject to which the Controller may
foreign Certifying Authority under sub-section (1) of section 19;
(c)
the terms and conditions subject to which a license may be granted under
of sub-section (3) of section 21;
clause (c)
(d)
other standards to be observed by a Certifying. Authority under clause (d)
30;
of section
(e)
the manner in which the Certifying Authority shall disclose the matters specified in
sub-section (1) of section 34;
(f)
the particulars of statement which shall accompany an application under sub-section
(3) of section 35
(g)
the manner by which a subscriber communicates the compromise of private key to the
Certifying Authority under sub-section (2) of section 42.
recognize any
(3)
Every regulation made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive- sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the regulation or both Houses agree that the regulation should not be
made, the regulation shall there after have effect only in such modified form or be of no effect, as the
ease may be; so, however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that regulation.
37
90
Power of State Government to make rules
(1)
The State Government may, by notification in the Official Gazette, make rules to carry out the
provisions of this Act.
(2)
In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely (a)
the electronic form in which filing, issue, grant receipt or payment shall
under sub-section (1) of section 6;
(b)
for matters specified in sub-section (2) of section 6;
be effected
(3)
Every rule made by the State Government under this section shall be laid, as soon as may be
after it is made, before each House of the State Legislature where it consists of two Houses, or where
such Legislature consists of one House, before that House.
91
Omitted vide ITA-2006
92
Omitted vide ITA-2006
93
Omitted vide ITA-2006
94
Omitted vide ITA-2006
38